Stop the World, I Want to Get Off: Globalization and American Sovereignty
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172 SIX Stop the World, I Want to Get Off Globalization and American Sovereignty Senator Elizabeth Warren was in high dudgeon. The target of her animus was a February 2015 draft agreement for the Trans-­ Pacific Partnership (TPP), a proposed bloc of twelve trading nations, including the United States. Its most objectionable provision was the envisioned Investor-­ State Dispute Settlement (ISDS) mechanism. This mechanism would allow companies that believed they had gotten a raw deal from TPP governments to bring their complaints to an in­ de­ pen­ dent tribunal composed (in Warren’s view) of well-­ paid corporate ­lawyers. “Agreeing to ISDS in this enormous new treaty would tilt the playing field in the United States further in ­ favor of big multinational corporations,” the Mas­ sa­ chu­ setts Demo­ crat complained in the Washington Post. “Worse, it would undermine U.S. sovereignty,” she continued. “This ­isn’t a partisan issue,” the liberal icon insisted. “Conservatives who believe in U.S. sovereignty should be outraged that ISDS would shift power from American courts, whose authority is derived from our Constitution, to unaccountable international tribunals.”1 Warren’s rare appeal across the aisle proved superfluous. Since early 2015, growing numbers of conservatives like Rep. Dana Rohrabacher of California had joined liberals like Rep. Rosa DeLauro of Connecticut in opposing the blockbuster trade pact. That was bad news for President Obama, who had counted on strong GOP legislative support for TPP, the centerpiece of his trade agenda. As Tea Party Republicans skeptical of Wall Street and interna06 -3159-7_ch6.indd 172 9/11/17 1:11 PM Stop the World, I Want to Get Off 173 tional organ­ izations began making common cause with left-­ wing legislators, Senate majority leader Mitch McConnell and House speaker John A. Boehner­ were struggling to deliver the legislative majorities the president needed to secure TPP. All this tumult clearly tickled Vermont senator Bernie Sanders, an in­ de­ pen­ dent who caucused with the Demo­ crats and would soon upend that party by declaring his candidacy for its presidential nomination. As he told the New York Times, “Some of my conservative friends are worried legitimately about the issue of sovereignty.”2 Conservatives outside Congress ­ were similarly split. The influential Club for Growth, a po­ liti­ cal action committee financed by major corporations, supported TPP. So did the Heritage Foundation, which argued that the “arbitration of freely accepted commitments . . . ​ does not undermine national sovereignty .” But the libertarian Cato Institute disagreed, depicting ISDS as both an unfair giveaway to foreign companies and a tool that ­ those companies could use to challenge U.S. regulations. Elsewhere on the right, both the Ea­ gle Forum and TheTeaParty​ .­ net “strongly opposed” the mega-­ trade deal.3 TPP had turned once-­predictable U.S. trade politics topsy-­turvy.4 For several de­ cades, Republicans had championed liberalization as an engine of growth and prosperity, the global accompaniment to deregulation and lower taxes at home; Demo­ crats had been skeptical, warning of massive job losses and a regulatory “race to the bottom.” Demo­ crats charged Republicans with shilling for corporate Amer­ i­ ca and indifference to the plight of American workers. Republicans accused Demo­ crats of protectionist pandering to ­ union bosses and tree huggers. Given ­ these dynamics, a Demo­ cratic president seeking trade promotion (or “fast-­ track”) authority needed to cobble together a legislative co­ ali­ tion reliant on GOP support to counterbalance opposition from his own party. Bill Clinton had used this approach to win passage of the North American ­ Free Trade Agreement (NAFTA) and to secure U.S. entry into the World Trade Organ­ ization (WTO). Believing that old rules still applied, President Obama had enlisted Republicans like Senator Orrin Hatch of Utah and Representative Paul Ryan of Wisconsin to help him secure trade promotion authority. But suddenly, outraged Tea Partiers and libertarians opposed to the ISDS risked upending his plans. Their complaint was not simply that companies could exploit binding arbitration to remedy allegedly unfair or discriminatory treatment. It was that the envisioned international panel would consist not of professional judges but in­ de­ pen­ dent ­ lawyers, operating ­ under rules established by the United Nations Commission on International Trade Law or the International Center for Settlement of Investment Disputes. “This is unconstitutional,” declared 06-3159-7_ch6.indd 173 9/11/17 1:11 PM 174 THE SOVEREIGNTY WARS Americans for Limited Government, a conservative po­ liti­ cal action group. The resulting “trade pact . . . ​ would constitute a judicial authority higher than even the...